242 P. 743 | Cal. Ct. App. | 1925
Plaintiff began this action in claim and delivery to recover possession of a certain Dodge truck. Judgment was entered for the defendants and the plaintiff appeals. The plaintiff in his motion for a new trial and also upon appeal contends that the evidence is insufficient to support the findings. The correctness of the judgment depends upon whether the defendants at the time of the prosecution of this action had a valid lien upon the truck in question for repairs made thereon, based upon the finding that such lien existed.
The evidence shows and the court found as a matter of fact that the plaintiff is and at all the times mentioned in the complaint was the owner of the truck involved in this action. The transcript further shows that the plaintiff while the owner of said truck entered into a conditional sales contract with one Jack Hirons. The conditional contract reserved and retained title in the conditional vendor until the truck should have been fully paid for. In the month of July, 1924, Mr. Hirons took the truck to the garage belonging to the defendants, or operated by the defendants, in the town of Los Banos and there had certain repairs made upon the truck to the value of $207.25. The truck, after the repairs mentioned, was returned to the possession of the said Hirons, and the contract to purchase not having been complied with, on or about the sixteenth day of August, 1924, the plaintiff took possession of the truck in question. Thereafter the truck was driven by a driver by the name of Beck. On or about the twentieth day of August, 1924, the driver Beck drove said truck into the alley adjoining the garage operated by the defendants for the purpose of having some adjustment made to the carbureter on the truck. It further appears from the transcript that, after leaving the truck in the alley and requesting adjustment to be made as above mentioned, Mr. Beck went away and was gone a short period of time. Upon returning he found that the truck had been driven *361 into the garage belonging to the defendants; that nothing had been done about adjusting the carbureter, but was told by the defendants that they were going to hold possession of the truck. The testimony also shows that between the time the defendants did the work upon the truck at the request of Mr. Hirons and before retaking possession thereof as just stated, a period of between three and four weeks elapsed during which period the truck was being constantly used and driven on the highways between Fresno and Los Banos.
The defendants found their claim of lien upon sections
There is no conflict in the testimony as to the fact that after the repairs were made to the truck in question in the month of July, it was restored to the possession of Jack Hirons and that the truck was thereafter used as above stated. In founding their claim upon section
"Q. Do you remember the occasion of the truck being taken away, after this new motor block was put in? A. Well, the morning before that, I think it was, the morning prior to Hirons taking the truck away, he came in and wanted to stand me off, wanted me to charge these parts and let him have the truck and charge the parts to him; I told him that Young had the truck back there, and I said, `As far as I am concerned, I am going to have the *362 money for these parts, I am going to be paid for these parts,' so he started back in the shop to see Young and I went back there with him, and there was a conversation there between the three of us there, and he said he wanted time on the parts and for the labor, claiming he had no money, and wanted to take the truck. `No,' I said, `as far as I am concerned, I am going to have either the money or good security,' and then he went out of the place. . . . A. He said he did not have the money to pay for the repairs of the truck at this particular time and so I told Mr. Young, `as far as I am concerned, if you want to stand Mr. Hirons off for this truck, I will just charge the parts to you,' so Mr. Hirons told Cy that he — Mr. Bickmore. Q. What do you mean by `Cy'? A. Cy Young told him that he — Hirons said that he had a lot of soda water he wanted to deliver and in three or four days would get the money, would have it made in that time, by going around out in the country here with the soda, and he said, `I have a lot of stuff to deliver if I can deliver I can get the money and pay you,' and he said, `If you let me have it for three or four days, I will get the money and if I do not I will bring the truck back in any time that you say and turn the motor over to you,' and then Mr. Young agreed to let him have it and I charged the parts direct to Mr. Young. Q. Do you know how much the sum total of these parts and the work amounted to that was charged on this motor? A. Something over $200. Q. You do not know the exact amount? A. No, sir; something over $200. The Court. That is Young's bill? A. For the parts and labor. Q. You say you did not see this man who preceded you on the stand, that day? A. No, sir; I did not. I was not there at the time the truck was taken out. Q. Was anything said between Young and Hirons as to what was to be done with the truck in case the bill was not paid? A. He said he was going around in the country and if he did not pay he would return it."
Following is the testimony of the witness Watkins: "Q. Were you present at any conversation in the shop when Charles Young, known as Cy Young, and Hirons were present, and they had a conversation about the truck? A. Yes, sir. . . . Q. And what was said between them with reference to this truck. A. Well, I was working on a *363 Hudson right by the door and they come back and was standing right there near where I was working on the Hudson and, of course, I did not hear everything that was said. I know that Hirons wanted his truck and we had done little jobs on it before, but he wanted to take it away the same as he had done before and pay for it a few days afterwards, and I heard Mr. Sischo say, well, he wanted his money, he did not care what was done, and Mr. Hirons was working in the soda works and I told him that he needed the car to make delivery of the soda through the country there and he said that he would get the money from the soda and would come in and pay the bill or return the truck and so they let him have the truck with the understanding that he could have at least three or four days until he got his stuff delivered and he would have the money and if not he would bring the truck back to them to keep until he got the money and paid the bill."
[1] This testimony shows beyond any controversy that whatever the effect of the agreement or conversation had with Mr. Hirons at the time of the delivery of the truck to him after the making of the repairs by the defendants, the delivery was not to theowner of the truck and, therefore, section
"However, Green and Gohl permitted Brian to take the automobile out of their possession after he had signed an agreement transferring all his right, title, and interest in the same to them for their protection until the repair bill should be paid. We shall pass the question as to the sufficiency of this writing to retain the lien by evidencing an agreement of the parties that it should continue in effect, because even though this writing be held sufficient to evidence such an intention upon the part of the parties thereto, nevertheless it would not have that effect as to the bank, the real defendant here. (Sec.
The bank in that case was the real owner, and, as said by the court in that case, the agreement was not with the owner. It is true that the case we have referred to was really decided upon other grounds, but the quotation contains, we think, a correct statement of the law.
[2] "The lien having once been lost by surrender of possession cannot be revived by any subsequently reacquired possession." (19 Am. Eng. Ency. of Law, p. 28, and authorities there cited.) The authorities there cited also show that delivery of possession is a surrender of the lien unless limited by the section of the code to which we have referred.
It is further argued by respondents that a conversation between counsel had at the time of the trial constituted a stipulation that judgment might be entered for the defendants for the amount claimed, irrespective of the provisions of section
Hart, J., and Finch, P.J., concurred.